Does the Indian Parliament have the powers to rewrite the Indian constitution?
The Constitution of India defines the fundamental principles based on which India is governed. It defines the powers and authority of the 3 pillars of governance.
So, if the Parliament has the authority to make new laws, can the Parliament completely rewrite the Constitution? To understand this better, we need to see how the Indian Constitution was made and how the Parliament gets its authority to make laws.
The Constituent Assembly
The Indian Constitution was made by the Constituent Assembly of 1946. The constituent assembly contained members from all walks of life across caste, creed and social divide. It was hoped that with a wide representation, the assembly will handle the interests and aspirations of the entire country. True to its goals, the Constituent Assembly created one of the greatest Constitutions in the world and dedicated it to the people of India.
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| A constituent assembly is an assembly of people who have come together for the sole purpose of creating or reviewing a Constitution. The Constitution came into effect on 26th January 1950, the day we celebrate today as Republic Day. |
If Parliament has the authority to make new laws, can the Parliament completely rewrite the Constitution?
Chicken & Egg – which one came first
So what does “Constitution came into effect” mean? In simple terms this means that the people of India accepted a Constitution which contained the rules on how they will be governed. The Constitution also established the Parliament and gave it the right to make new laws and rules. Since the powers of the Parliament came from the Constitution, the Parliament has no right to change the Constitution itself. Imagine sitting on the branch of a tree and trying to cut off the branch, that would be a very silly thing to do indeed. Likewise, the Parliament exists and gets its rights because of the Constitution and hence the Parliament cannot rewrite the Constitution.
Article 368 gives Parliament the power to ‘amend’ the Constitution
So are we stuck forever?
Thankfully for us, our founding fathers – the members of the Constituent Assembly – were very farsighted. They realized that with time some of the rules of the Constitution would need change to keep up with the modern times. To support this, they added Article 368 to the Constitution. Article 368 gives Parliament the power to ‘amend’ the Constitution. The power though is only to enhance/add new laws and NOT to completely rewrite the Constitution.
Parliament exists and gets its rights because of the Constitution and hence the Parliament cannot rewrite the Constitution
But what if Parliament tries to amend the entire Constitution
Ok, so the Parliament can only amend sections of the Constitution, got that. But can the Parliament be wicked smart and just amend every section of the Constitution?
That is where the Judiciary comes in. Remember the role of the Judiciary? Ensuring that the spirit of the constitution is never violated. A very famous case had come up for hearing in the Supreme Court in 1973. In this case, the Supreme Court’s constitution bench ruled that Parliament could amend the Constitution as long as the basic structure of the Constitution is NOT changed. In legal terms this principle is called “Basic Structure Doctrine”. i.e. there is a basic structure, philosophy and spirit of the Constitution and this can never be amended by Parliament.
And what exactly is this basic structure of our Constitution that cannot be changed? It includes amongst other things these:
- Fundamental rights
- Democratic Republic as defined in Preamble
- Checks and balances between the Legislature, Judiciary and Executive
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| In 1973, Swami Keshavananda Bharti filed a case against the Government of Kerala. Swami Keshavananda was the head of a Mutt in Kasargode, Kerala. When the Government wanted to take over some of the land of the Mutt he questioned it since he felt it was a violation of his fundamental right to property. The case reached the Supreme Court and the Court passed the historic judgment on the rights of Parliament. Interesting footnote: Swami Keshavananda Bharti still lost the case as the Court felt that the land should be given to the State in the larger interests of society. |
Wait, what if we realize someday that we need a totally new Constitution?
No Constitution can be cast in stone and maybe someday a totally new one is needed for the country. Parliament, by itself, will not be able to do it (remember this?). What we would need is to establish another constituent assembly. This new constituent assembly will follow the same rules as the original assembly of 1946. Once the new Constitution comes into force all citizens of India will be bound by rules therein.
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| Our Constitution has been amended more than a 100 times till date (2021). The very first amendment was in 1951 |
Further Reading
All this sounds quite intriguing, where do I read more about this?
- Wikipedia does have lots of information, but not necessarily fully reliable. Having said that, this site gives a very detailed and easy to follow description of the “Basic Structure Doctrine”
- A very good (but slightly long) article at ConstitutionNet on the basic structure of the Indian Constitution
- The Supreme Court, and its judges, seem to wield a lot of responsibility. To know how they are appointed, read “Digest 2 – June 2021” edition
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| Famous verdicts from the Supreme Court of a country is usually referred to by courts in other countries. Many other countries (Bangladesh, Pakistan, Malaysia for example) have referred to the Indian Supreme Court’s judgment on “Basic Structure Doctrine” in their judgments. |
Lastly, for the curious-minded, a good video to watch on this topic is linked below. You may need a bit more reading up on the fundamental rights and basic articles of the Constitution before viewing.
Food for thought
What do you think about the safeguards in our Constitution? Do you think they are restricting freedom of Legislature. Or are they important to have. Share your thoughts in the Comments section below.
Wonderfully written, loved the way you explained everything in such a simple yet captivating way 😄
And to answer the question in the ‘food for thought’ section, the safeguards of the constitution are vital to have. The framers of our Constitution would have framed it in a way that is best for Indian Citizens. And, as the times change, though some things in it may have to be changed, the fundamental base of the Constitution remains same, and so I think that amendments are much needed but changing/rewriting the whole Constitution is rightly banned.
Thank you for sharing your thoughts. Very good perspective and I tend to agree with you – we are too young a Republic to be changing our Constitution.
Wow I thoroughly enjoyed reading this and it’s thought provocative…never saw in this light..I think for people like you may want to start from the beginning
Thank you for your comment. This definitely is food for thought and in a democracy something we need to watch out for. We’ll have more posts on our parliamentary model soon!